Girja Shankar Sahay and Another vs State of Bihar

Shiveshwar Prasad Sinha, J.—This is an application for quashing an order dated the 24th August, 1968, passed by the acting Sub-divisional Magistrate. Dumka in O. C. R. No. 372 of 1968/T. R. No. 855 of 1968 taking cognizance of a case u/s 223 of the Indian Penal Code against the petitioners and also against an order dated the 20th December, 1968 passed by the Munsif Magistrate. 1st Class, Dumka to whom the case was transferred, holding that no sanction u/s 197 of the Code of Criminal Procedure was necessary for proceeding against petitioner No. 1.

On the 26th April. 1968 at 12-45 A. M. a motor truck bearing registration no WBK 6064 was apprehended at Kurwa check post by petitioner No. 1. The truck was loaded with foodgrains, as also with 49 bags of milk powder, the latter being a restricted commodity. Immediately on the same day petitioner No. 1 wrote a memo informing the Subdivisional Officer. Dumka, about the incident and further saying in his memo that "as it is one of the restricted commodities you are thereby informed to kindly take necessary action in the matter. Six men including the driver have been detained and confined in the said truck." It appears from the subsequent note sent by petitioner No. 1. to the Sub-divisional Officer again, which note was also sent on the same date as the first one, informing the Subdivisional Officer that at about 8.30 in the morning a fire broke out in the check post, and in the confusion that followed by the fire, five of the six persons detained fled away. Only one of them, namely, Jagdish Singh, who was a co-driver of the said truck, remained behind. It appears that at an oral instruction given by the Subdivisional Officer the police registered a case u/s 414 of the Indian Penal Code against the petitioners and started an enquiry. Ultimately on the 4th June, 1968, the police recommended prosecution of the petitioners u/s 223 of the Indian Penal Code. The Sub-divisional Officer by his order dated the 24th August, 1968, took cognizance of an offence u/s 223 of the Indian Penal Code against the petitioners and transferred the case for trial to Mr. R. N. Singh, Munsif Magistrate, 1st Class, Dumka. At this stage petitioner No. 1 filed an application stating that since the cognizance taken in the case against him wise. He cannot be guilty of an offence Section 197 of the Code of Criminal Procedure, the prosecution be dropped. This application was rejected by an order dated the 20th December. 1968 it being held that no such sanction was necessary.

Mr. Ram Behari Singh appearing for the petitioners submitted that on the allegations made against the petitioners no offence was disclosed u/s 223 of the Indian Penal Code and, therefore, the taking of the cognizance of an offence under that section against the petitioners was illegal and further that in the absence of the sanction obtained u/s 197 of the Code of Criminal Procedure of the State Government of cognizance could be taken against petitioner No. 1 in respect of an offence u/s 223 of the Indian Penal Code.

Mr. Agarwal appearing for the State submitted that so far as the question of sanction u/s 197 of the Criminal Procedure Code was concerned that did not apply to the case of petitioner No. 2. who was not a public servant within the meaning of that section. He further submitted that the question as to whether or not an offence was disclosed on the basis of the allegations made against the petitioners was a question which could be decided at the trial. At the present moment the allegations were such as did disclose an offence having been committed by the petitioners. In this respect he drew my attention to the Bihar Sales Tax Act and to the duties and obligations of the petitioners u/s 41 read with Rule 32 of the said Act. He submitted that the application was premature and, therefore, it ought to be dismissed.

Having heard the parties I think, the contention raised on behalf of the petitioners is well founded and must be accepted.

So far as petitioner No. 1 Girja Shankar Sahay, is concerned, his case has got to be allowed on both counts namely, for want of sanction u/s 197 of the Code of Criminal Procedure for prosecuting him, as also because the facts alleged against him did not disclose any offence having been committed by him. Only the latter ground would, however, apply to the case of petitioner No. 2.

An offence u/s 223 is committed by a public servant who though legally bound as such public servant to do an act neglects to do so. The offence envisaged in terms of Section 223 is one of which a public servant is guilty only while acting as public servant, not otherwise. He cannot be guilty of an offence u/s 223 unless he was acting as a public servant. Therefore, for taking cognizance of an offence u/s 223 against petitioner No. 1 sanction in terms of Section 197 of the Code of Criminal Procedure was essential. I may quote the relevant portion of Section 223 of the Indian Penal Code:

Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with...negligently suffers such persons to escape from confinement....

In a case where a public servant is guilty of such person to escape from confinement, he was acting only as a public servant. Now therefore, under the provision of Section 197 of the Criminal Procedure Code sanction of the State Government in a case where an accused is charged with as offence alleged to have been committed by him while acting or purporting to act in discharge of his duty as a public servant, was essential. On this ground alone the taking of cognizance of an offence u/s 223 against petitioner No. 1 has got to be struck down.

Quite apart from what I have observed above, on the allegations made against the petitioners, no offence seems to have been committed by them. I have already stated the facts above and I need not repeat them here once again. The petitioner No. 1. as his memo to the Sub-Divisional Officer shows, had detained six men, including the driver of truck no. WBK 6064 and had confined them in the said truck. That the petitioners did at 12.45 A. M. on the 26th April, 1968. On the same date at 8.30 A. M. in the morning five of the six persons escaped or, I will even say. let off by the petitioners. The question would be: did they commit any offence as envisaged either u/s 223 or even u/s 225 as the transfere court thought, or as the police initially thought, offence u/s 414 of the Penal Code? I will first examine the provisions of Section 223 of the Indian Penal Code, which reads as under:

Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement shall be punished with simple imprisonment for a term which may extend to two years, or with fine or with both.

In terms of this section only such a public servant can be said to have committed an offence, who was legally bound as such Public servant to keep in confinement a person charged with or convicted of any offence.

So far as the petitioners are concerned, their powers are derived under the Sales Tax Act. Sections 38(1), 39 and 41 are the relevant provisions in this respect. Clause (1) of Sub-section (1) of Section 38 reads as:

Whoever fails or neglects to comply with the provisions of Sub-section (2) of Section 41 or obstructs any authority or officer in the performance of duty under Sub-section (3) of the said section...shall be punishable with imprisonment of either description which may extend to six months....

It will be relevant to read Section 41 before reading Section 39, Section 41 reads as under:

(1) The State Government may. by notification, set up and erect, in such manner as may be prescribed check posts and barriers of any place in the State with a view to preventing evasion of tax payable under this Act.

(2) Every person transporting such goods as the State Government may. by notification, specify shall at any check post or barrier referred to in Sub-section (1) and before crossing such check post or barrier, file before such authority or officer as may be authorised by the State Government in this behalf, a correct and complete declaration in such form and in such manner as may be prescribed,

(3) The authority or officer authorised by the State Government under Sub-section (2) may. for the purposes of satisfying himself that the provisions of Sub-section (2) are not being contravened, and subject to such restriction as may be prescribed, intercept, detain and search any road vehicle or rivercraft which may be suspected of being used for contravening such provisions.

Sub-section (2) of Section 39 reads as under:

Every person so authorised shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure. 1898 (V of 1898), upon an officer in charge of a Public station for the investigation of a cognizable Offence.

The scheme, as it obviously appears, on reading these provisions of the Bihar Sales Tax Act, is that check posts are set UP with a view to prevent evasion of sales tax. The officers, who are posted there, are authorised to intercept, detain and search any road vehicle or rivercraft which may be suspected of being Used for the purpose of contravening the provisions of the Sales Tax Act, that is, for tax evasion. In terms of Sub-clause (1) of Section (1) of Section 38 a person, who fails or neglects to comply with the requirements of Sub-section (2) of Section 41, namely, of not filing correct and complete declaration of the materials being carried, or whoever obstructs an authority on the check post from intercepting, tendering or searching any of the carriers was liable to be punished with imprisonment. While carrying on investigation in terms of Section 39 of the Act the authority had all the powers of a police officer while conducting investigation under the Code of Criminal Procedure.

It will be immediately seen that an officer at the check post was not authorised to confine or arrest a person who was supposed to contravene a provision of the Sales Tax Act. All that he was permitted to do was to intercept, detain or search the road vehicle or the river-craft, namely, the carrier, but not the person, who was driving, or travelling on, the road vehicle or the river-craft. I am told that so far as the truck was concerned, that remained intercepted. The truck was not let off but only five of the personal fled away. Mr. Agarwal at this stage drew my attention to Rule 32 of the Bihar Sales Tax Rules, 1959, under which even the personnel of a vehicle or river craft could be detained by the check post authority.

This rule has no doubt enlarged the list of detainees referred to in Section 41 (3) of the Bihar Sales Tax Act. 1959, by adding, besides the carrier vehicle or craft, also its personnel.

Now. therefore, even assuming that the said rule, though exceeding the limits of the parent provision of the Act, was valid and the personnel manning the carrier could be detained by the check post authority, no offence u/s 223 of the Indian Penal Code (hereinafter referred to as ''the Code'') would be committed, if after detention one or more persons detained were let off by the check post authority.

Firstly, as I think, the power to detain is not synonymous with the power to confine. Confinement is detention, but detention is not confinement. The word, ''detain'' means, "to hold back: to withhold: to stop: to keep: to keep in custody". The word ''confine'' means; "to limit, enclose: to imprison," - Vide Chamber''s Twentieth Century Dictionary. Therefore, where an authority, not authorised to confine a person but only to detain, let off such person from his custody no offence u/s 223 of the Code is committed. It is only when the letting off is from a confinement that an offence u/s 223 can be said to have been committed. The check-post authority having no power to confine a person but only to detain cannot, therefore, be guilty of an offence under the said provision of the Code.

Secondly. Section 223 of the Code deals with a case of escape of a person "charged with or convicted of any offence" owing to the negligence of a public servant. In the case before me the persons, who had escaped, were neither charged with nor convicted of any offence. Only the truck manned by them had been intercepted but not the personnel had either been charged with any offence or had been convicted when they escaped.

In my opinion, therefore, even if it is assumed that the personnel of the motor truck no. WBK 6064 escaped due to the negligence of the petitioners, no offence u/s 223 of the Code is disclosed thereby.

Similarly, no offence u/s 225 or 414 of the Code was disclosed on the basis of the allegations against the petitioners. They have not rescued persons from any lawful custody as required u/s 225 of the Code nor have they assisted in concealing or disposing of the property, which was believed by them to be stolen property, as required u/s 414 of the Code.

I think, the taking cognizance of u/s 223 of the Code was bad enough and it was worse still to take cognizance without the sanction of the State Government u/s 197 of the Code of Criminal Procedure against petitioner No. 1. The order dated the 24th August. 1968. taking cognizance of the case u/s 223 of the Code against the petitioners is. accordingly quashed. The application is allowed and the rule is made absolute.